United States District Court, E.D. Arkansas, Jonesboro Division
PROPOSED FINDINGS AND RECOMMENDATIONS
VOLPE UNITED STATES MAGISTRATE JUDGE
following recommended disposition has been sent to United
States District Judge Billy Roy Wilson. Any party may serve
and file written objections to this recommendation.
Objections should be specific and should include the factual
or legal basis for the objection. If the objection is to a
factual finding, specifically identify that finding and the
evidence that supports your objection. An original and one
copy of your objections must be received in the office of the
United States District Court Clerk no later than fourteen
(14) days from the date of the findings and recommendations.
The copy will be furnished to the opposing party. Failure to
file timely objections may result in waiver of the right to
appeal questions of fact.
are objecting to the recommendation and also desire to submit
new, different, or additional evidence, and to have a hearing
for this purpose before the District Judge, you must, at the
same time that you file your written objections, include the
1. Why the record made before the Magistrate Judge is
2. Why the evidence proffered at the hearing (if such a
hearing is granted) was not offered at the hearing before the
3. The details of any testimony desired to be introduced at
the new hearing in the form of an offer of proof, and a copy,
or the original, of any documentary or other non-testimonial
evidence desired to be introduced at the new hearing.
this submission, the District Judge will determine the
necessity for an additional evidentiary hearing. Mail your
objections and “Statement of Necessity” to:
Clerk, United States District Court Eastern District of
Arkansas 600 West Capitol Avenue, Suite A149 Little Rock, AR
Stearns (“Plaintiff”) has filed this action
alleging Defendants Inmate Services Corporation
(“ISC”) and John Does, who are up to one hundred
unknown ISC agents and employees, violated his constitutional
rights, as protected by 42 U.S.C. § 1983, and California
Civil Code § 52.1 when they transported him from
Colorado to Mississippi from September 17 to 24,
2016. (Doc. Nos. 1, 10.) Plaintiff has filed a
Motion seeking class certification of these claims, to which
Defendants have objected. (Doc. Nos. 50, 55.) All parties are
represented by counsel.
ISC and Does have filed a Motion for Summary Judgment,
arguing they are entitled to judgment as a matter of law.
(Doc. Nos. 69, 70.) Plaintiff has filed a Response, and
Defendants have filed two Replies. (Doc. Nos. 71, 73, 74,
76.) Thus, this matter is now ripe for a decision.
careful review of the pleadings and for the following
reasons, I find Defendants' Motion for Summary Judgment
should be granted as to the § 1983 claims, and I
recommend those claims be dismissed with prejudice. Rather
than dismissing Plaintiff's California state law claim on
the merits as requested by Defendants, I recommend the Court
decline to exercise supplemental jurisdiction over that claim
and dismiss it without prejudice. For the same reason, I
recommend the state contract claims raised by Intervenors
National Continental Insurance Company and Scottsdale
Insurance Company be dismissed without prejudice. Finally, I
recommend Plaintiff's Motion for Class Certification
(Doc. No. 50) be denied as moot and the consolidation of this
case with the Peters negligence action be severed.
SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure, summary
judgment is proper “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by citing to
particular parts of materials in the record, “including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those
made for purposes of the motion only), admissions,
interrogatory answers, or other materials[.]”
ruling on a motion for summary judgment, the court must view
the evidence in a light most favorable to the nonmoving
party. Naucke v. City of Park Hills, 284 F.3d 923,
927 (8th Cir. 2002). The nonmoving party may not rely on
allegations or denials but must demonstrate the existence of
specific facts that create a genuine issue for trial.
Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir. 2007).
The nonmoving party's allegations must be supported by
sufficient probative evidence that would permit a finding in
his favor on more than mere speculation, conjecture, or
fantasy. Id. (citations omitted). A dispute is
genuine if the evidence is such that it could cause a
reasonable jury to return a verdict for either party; a fact
is material if its resolution affects the outcome of the
case. Othman v. City of Country Club Hills, 671 F.3d
672, 675 (8th Cir. 2012). Disputes that are not genuine or
that are about facts that are not material will not preclude
summary judgment. Sitzes v. City of West Memphis,
Ark., 606 F.3d 461, 465 (8th Cir. 2010).
facts, taken mostly from Plaintiff's deposition and
viewed in the light most favorable to him, are as follows.
(Doc. Nos. 70, 71, 73, 76.) ISC is a small, private company
located in West Memphis, Arkansas, with approximately ten
employees and two to four vehicles it uses to transport
convicted prisoners and pretrial detainees between various
correctional facilities across the United States. (Doc. No.
September 17, 2016, an ISC van, driven by Mr. Chris Weiss and
Ms. Ryan Moore, picked-up Plaintiff, who was a pretrial
detainee at a county jail in Colorado Springs, Colorado, to
transport him to a county jail in New Albany, Mississippi, to
face state drug charges. (Doc. Nos. 69, 71-1.) Rather than
driving directly to Mississippi, the van traveled through
California and numerous other states where additional
prisoners were picked up and dropped off at other facilities.
eight-day trip was continuous, without any overnight stops.
(Id.) The drivers took turns sleeping on a mattress
in the front of the van, while Plaintiff and the other
passengers remained in upright, seated positions.
(Id.) Although Plaintiff was not allowed to lie
down, he admitted during his deposition that he was able to
take thirty-minute “catnaps” while in a seated
position and he was able to get out of the van to stretch
when it stopped for refueling or bathroom breaks. (Doc. No.
71-7 at 18, 44.) Plaintiff's buttocks allegedly became
raw from the prolonged sitting, and the van drivers provided
him with an over-the-counter cream to treat it. (Id. at
the journey, Plaintiff was in handcuffs and leg shackles with
a belly chain connecting the two restraints. (Doc. No. 71-7
at 8-9.) Plaintiff claims the restraints caused the skin on
his ankles and wrists to become “raw” and
“irritated, ” and despite his complaints, they
were not loosened or removed. (Id. at 35.)
were no bathrooms on the van, and bathroom breaks at public
gas stations and rest stops were allegedly infrequent.
(Id. at 30-34.) As a result, Plaintiff claims he was
forced to urinate in a cup on two or three occasions, that
other prisoners accidentally spilled urine on the van floor
while doing the same, and that one prisoner soiled herself.
(Id.) Plaintiff also asserts his restraints were not
removed or loosened while he used the bathroom, thereby
making it impossible for him to properly wipe or wash his
hands. (Id.) Plaintiff says this caused him to have
“clogs of manure in my drawers.” (Id. at
his deposition, Plaintiff testified he received fast food for
breakfast and dinner, but no lunch. (Id. at 45-48.)
Plaintiff says he was given a bottle of water once, but
otherwise only received fluids with meals. (Id. at
49-50.) Plaintiff alleges Mr. Weiss threatened him with a gun
and mace when he asked for a shower and a pack of cigarettes.
(Id. at 27-29.)
was not allowed to brush his teeth, shave, bathe, or use hand
sanitizer throughout the trip. (Id. at 28, 39, 51.)
Plaintiff claims this caused him to develop a quarter-size
patch of ringworm on his stomach, but there is no evidence he
reported it to either driver. (Id. at 55-56.)
arrived at the Mississippi jail on September 24, 2016. (Doc.
Nos. 69, 71-1.) He received oral antibiotics for ringworm,
which “went right away.” (Doc. No. 71-7 at 55-56,
60.) However, Plaintiff did not report any other medical
problems (such as raw buttocks from constant sitting or skin
irritations from the restraints) ...